Gorilla’s death calls for human responsibility, not animal personhood

Author

Disclosure statement

Richard L. Cupp does not work for, consult, own shares in or presently receive funding from any company or organization that would benefit from this article. He was previously awarded research grants by the National Association of Biomedical Research in support of his 2009 and 2013 law review articles cited in this article; his more recent law review articles cited in this article were not supported by external grants.

Expanding legal personhood to include intelligent nonhuman animals would give them legal rights, and would create standing for a human guardian to initiate legal actions on their behalf – much like children’s rights are protected in courts by guardians.

At first blush this may sound progressive and enlightened, but in reality the concept is fundamentally flawed and dangerous for society.

Turning to our legal system in responding to Harambe’s tragedy is the right approach, but our legal focus should be on ensuring effective human responsibility for the proper treatment of gorillas and other nonhuman animals rather than on pretending that gorillas are people.

Protections for animals

At surface, legal personhood for intelligent nonhuman animals has an edgy appeal and is often compared by its advocates to the noble battles to attain civil rights for marginalized humans.

Would Harambe’s tragic killing have been avoided if our legal system considered a gorilla to be a legal person? Probably. A zoo likely would not be permitted to confine a legal person for viewing by the public. But although the nonhuman animal personhood approach has dramatic flair, it is not needed to change our laws regarding great apes and zoos.

Whether animals with the intelligence of great apes should be kept in any zoos, even high-quality zoos, is an increasingly serious question appropriate for thoughtful deliberation. And if the argument that they should not carries the day, this can be readily accomplished by changing the laws within our existing legal framework.

In other words, we do not need to pretend that great apes are people to protect them. Engaging in this pretension would be, in my view, both illogical and dangerous.

Society is rapidly evolving to demand greater protections for nonhuman animals, and appropriately so. Maintaining the status quo regarding levels of protection is in many instances neither feasible nor desirable.

But we are also increasingly facing a question with weighty societal implications. Will we channel this evolution through the animal welfare paradigm of enhanced human responsibility toward nonhuman animals? Or will we channel it through the radical paradigm of legal personhood and human-like rights for nonhuman animals?

In our society, legal personhood is anchored in the human community’s expectations of reciprocity from moral agents. We recognize that humans have rights, but we also generally expect them to accept responsibilities that come with belonging to or interacting with our society. Extending personhood beyond humans and their proxies would be inconsistent with our society’s core foundational principles.

When an adult chimpanzee at the Los Angeles Zoo mauled a baby chimpanzee to death in front of zoo visitors in 2012, of course officials did not consider putting the chimpanzee on trial for murder. Although chimpanzees are highly intelligent as compared to most nonhuman animals, none of them are capable enough to be held morally responsible under our society’s laws. We should not dilute the protections and responsibilities connected to personhood by extending it to nonhumans incapable of the level of accountability we generally impose on humans.

Further, analyzing courts’ and advocates’ rationales for assigning legal personhood and rights to humans who lack significant moral agency, such as young children and humans with significant cognitive impairments, demonstrates that their belonging in the human community, rather than an assessment of their cognitive abilities, is the anchor of their rights and legal personhood. I have published separate law review articles addressing in much more detail why the legal personhood of young children and the legal personhood of humans with significant cognitive impairments do not support legal personhood for intelligent nonhuman animals.

Humans are the only beings that we know of where the norm is capacity to shoulder the mutual obligations that are at a foundational level related to legal rights in our society. Among other beings of which we are aware, not only do no other types of animals meet this norm, no individual members of any other types of animals meet this norm.

The most vulnerable humans, those with significant cognitive limitations, would face the greatest risks in a shift to considering individual cognitive capacities as a basis for legal personhood. Although the legal personhood paradigm we assign to them would not immediately collapse, over time thinking of personhood in terms of individual abilities could erode their protections.

Nonhuman animal legal personhood presents other intractable problems, such as articulating a workable approach to determining how far down the intelligence chain personhood should extend.

Every species of mammals and many other nonhuman animals demonstrate some level of autonomy, indeed probably more autonomy than some humans with particularly severe cognitive limitations, such as, for example, humans in a persistent vegetative state. To ensure “equality,” should all of these animals be designated as legal persons?

But we are just at the beginning of what will be a long-term struggle. Many more lawsuits will likely be filed over the years in many jurisdictions. The ultimate outcome is far from clear, and the stakes are high.

Concluding that intelligent nonhuman animals such as Harambe should not be legal persons does not excuse us from doing more to protect them. Harambe’s outrageous death provides a powerful illustration. The facts surrounding his death must be extensively investigated to determine whether the zoo, the child’s parents, or any other humans or human proxies should be held legally accountable.

Regardless of whether the zoo’s employees made the right decision in shooting Harambe, wrong decisions must have been made earlier that allowed this tragedy to take place.

If no laws or regulations were violated, the laws and regulations almost certainly need to be changed to ensure that this does not happen again. But our focus needs to be on demanding appropriate responsibility from morally accountable humans and human institutions, rather than on the dangerous pretense of nonhuman animal personhood.